Citation Nr: 1437916
Decision Date: 08/25/14 Archive Date: 09/03/14
DOCKET NO. 09-20 523 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for left hip degenerative joint disease (DJD), to include as secondary to service-connected residuals of a right pelvis fracture with right hip DJD.
2. Entitlement to service connection for lumbar disc disease, to include as secondary to service-connected residuals of a right pelvis fracture with right hip DJD.
3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities.
REPRESENTATION
Appellant represented by: Elliott L. Dozier, Attorney at Law
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L. J. Vecchiollo
INTRODUCTION
The Veteran served on active military service from April 1965 to March 1969.
The appeal comes before the Board of Veterans' Appeals (Board) from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which confirmed and continued the previous denials of service connection for PTSD; denied entitlement to service connection for left hip degenerative joint disease and lumbar disc disease; increased the rating for residuals of a right pelvis fracture with right hip degenerative joint disease to 10 percent effective November 23, 2005; and denied entitlement to a TDIU rating.
In November 2010 the Veteran testified at a Travel Board hearing in St. Petersburg, Florida, before the undersigned Veterans Law Judge.
In a March 2011 decision, the Board reopened the Veteran's PTSD claim, denied it on the merits, and remanded the remaining issues for further development and consideration.
In an April 2013 decision, the Board denied an increased rating for residuals of a right pelvis fracture with right hip DJD, and remanded the remaining issues for further development and consideration.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
The Veteran has a right to compliance with the remand orders of the Board. Stegall v. West, 11 Vet. App. 268 (1998).
In its April 2013 remand, the Board noted that the Veteran's long time issues with drifting/homelessness greatly interfered with his ability to report for VA compensation examinations. Therefore, the Board requested VA opinions based on the evidence of record be obtained regarding the service connection claims. However, the AOJ scheduled the Veteran for VA examination in February 2014, to which the Veteran failed to report. In a March 2014 supplemental statement of the case, the AOJ denied the claims based on this failure to report. The Board had requested a file review with examination only if deemed necessary by the examiner. As there is no indication in the record that an examination was deemed necessary by the examiner to render the opinions, the case must again be remanded to comply with the prior remand directives.
Accordingly, the case is REMANDED for the following action:
1. Ask a VA physician to review the Veteran's electronic claims file and relevant VA treatment records to obtain an opinion regarding the claims for service connection for low back and left hip disabilities. After review of the record, the physician should respond to the following:
a. For the low back disability:
(I) Is it more likely (greater than 50% probability), less likely (less than 50% probability), or at least as likely as not (50/50 probability) that the Veteran's diagnosed low back disability had its onset in service or is related to an incident in service? Please explain the reasons for the conclusions.
(II) If not, is it more likely, less likely, or at least as likely as not that the Veteran's service-connected right pelvic fracture with DJD of the right hip caused the Veteran's low back disability? Please explain the reasons for the conclusions.
(III) If not caused by the service connected right pelvis/right hip disability, is the Veteran's low back disability permanently worsened beyond normal progression (aggravated) by the service connected right pelvis/hip disability? If the physician concludes that the low back disability is aggravated by the right pelvis/right hip disability, the examiner should attempt to determine the baseline level of disability prior to the aggravation and quantify the degree of aggravation caused by the service connected right pelvis/right hip disability.
b. For the left hip disability:
(I) Is it more likely (greater than 50% probability), less likely (less than 50% probability), or at least as likely as not (50/50 probability) that the Veteran's diagnosed left hip disability had its onset in service or is related to an incident in service? Please explain the reasons for the conclusions.
(II) If not, is it more likely, less likely, or at least as likely as not that the Veteran's service-connected right pelvic fracture with DJD of the right hip caused the Veteran's left hip disability? Please explain the reasons for the conclusions.
(III) If not caused by the service connected right pelvis/right hip disability, is the Veteran's left hip disability permanently worsened beyond normal progression (aggravated) by the service connected right pelvis/hip disability? If the physician concludes that the left hip disability is aggravated by the right pelvis/right hip disability, the examiner should attempt to determine the baseline level of disability prior to the aggravation and quantify the degree of aggravation caused by the service connected right pelvis/right hip disability.
c. If the examiner cannot provide an opinion on the question(s) above without resorting to speculation, the examiner should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.).
d. If the examiner determines that a VA examination is needed to respond to the question(s), one should be scheduled. If the Veteran fails to report to the examination and the examiner cannot provide the requested opinion(s), it should be noted in the record that an examination was deemed necessary by the examiner.
3. After completion of the above, readjudicate the appeals for service connection and the appeal for TDIU. If the benefits sought remain denied, furnish the Veteran and his attorney a Supplemental Statement of the Case and provide an appropriate period of time for response. Then, return the case to the Board for appellate review.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
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K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).